JUDGMENT
Anandamoy Bhattacharjee, J.
1. The questions involved in this Second Appeal are no longer res Integra, but are covered by binding precedents and governing ourselves by them, as we must, we cannot but dismiss the appeal, which we hereby do.
2. Our Law Reports abound in cases dealing with the question as to whether a business, which under the law, can be carried on only under and in accordance with a statutory licence or permit, but is carried on by the holder of the licence or permit in co-partnership with others not having any such licence or permit, is illegal as being forbidden by law or defeating the provisions of the law or as against public policy. As usual, our Courts have spoken in different voices on different occasions and the views propounded therein may sometimes defy reconciliation.
3. But confining ourselves to the decision of the Privy Council in Gordhandas v. Champsey (AIR 1921 Privy Council 137) affirming the decision of the Bombay High Court in Champdey v. Gordhandas (AIR 1917 Bombay 250), the decision of this Court in Mafizuddin Khan v. Habibuddin Sheikh and the two decisions of the Supreme Court in Umacharan v. Commissioner of Income Tax (1959-37 Income Tax Reporter 271) and in K. M. Viswanatha Pillai v. K. M. Sammugham Pillai , all binding on us, the position appears to be that if the holder of licence or permit retains the control of the business and there is nothing to show that the licence/permit has in any way been transferred to the partners and the latter only share the profits or losses of the business in consideration of their pecuniary contribution to the partnership fund, such a partnership, unless expressly forbidden by any relevant statute, is not illegal on any of the grounds mentioned in Section 23 of the Contract Act.
4. The decision in K. M. Viswanatha Pillai (supra) appears to be a clear authority for the view that one can own and run a motor vehicle on the strength of a permit covering the same even though the permit does not stand in his name. If that is permissible, then carrying on business of carriage by the holder of the permit with the vehicle belonging to or standing in the name of his partner, would also be permissible. As ruled by the Supreme Court in the said decision, the relevant provisions of the Motor Vehicles Act of 1939 did not require that holder of the permit and owner of the vehicle covered thereby need be the one and the same person.
5. In the case at hand, however, both the holder of the permit and registered owner of the vehicle are the same person, while the other partners were only sharing profits and losses according to the terms of the partnership agreement in consideration of their contributions made towards the partnership. In that view of the matter, a fortiori, the partnership was not illegal on any of the grounds mentioned in Section 23 of the Contract Act, in view of the ratio of the abovenoted decisions of the Calcutta High Court, the Privy Council affirming that of the Bombay High Court and the decisions of the Supreme Court. That being so, we find no reason to interfere with the decision of the first appellate Court holding the partnerships to be legal and declaring the same to have been dissolved and directing rendition of accounts and awarding other consequential reliefs. As indicated at the outset, we would dismiss the appeal.
6. The partnership having been declared to have been dissolved with effect from 1969 by the decree of the first appellate Court in 1976, when the preceding Motor Vehicles Act of 1939 was in operation, the provisions of the new Motor Vehicles Act of 1988, repealing and replacing the earlier Act with effect from 1.7.1989, may not detain us. But otherwise, we would have been inclined to think that the fiat of the Supreme Court in K. M. Viswanatha (supra) that the holder of a permit need not be the owner of a motor vehicle can sue for a declaration that the registered owner of the vehicle and/or the registered holder of the permit was his benamdar, requires reconsideration in view of the relevant provisions of the new Motor Vehicles Act of 1988 and also the recent legislation being the Benami Transactions (Prohibition) Act, 1988.
7. As would appear from the judgment in K. M. Viswanath Pillai (supra), what greatly weighed with the Supreme Court was that though the provisions of Section 42(1) of the Motor Vehicles Act of 1939 provided that “no owner of a transport vehicle shall use or permit the use of the vehicle……save in accordance with the conditions of a permit granted”, the expression “permit granted” not having been qualified or circumscribed by any such words like “to him” or the like, the owner was not necessarily required to be the holder of the permit covering the vehicle. It may, however, be noted that in the corresponding Section 66(1) of the new Motor Vehicles Act of 1988, the words “authorising him” after the words “permit granted” etc. are now staring at the face. We are inclined to think that in view and in the context of this conspicous and deliberate change in the wordings of the Section 86(1)(c) of the new Act, corresponding to Section 60(1)(c) of the old Act referred to by the Supreme Court, should be construed to have only expressly vested the authorities with the power to cancel or suspend the permit granted to an owner of the vehicle on his ceasing to own the same and not as one entitling a person to apply for and hold the permit in respect of a vehicle even though he is not or has ceased to be the owner.
8. Further, the provisions of Section 4 of the Benami Transactions (Prohibition) Act, 1988 now categorically overthrows all suits, claims, actions or defence based on the footing that one party is the benamdar of the other. A Division Bench of this Court has already held in Urmila v. Probodh , that the Act has sweeping retroactive operation to apply to all proceedings pending before any Court in any shape or at any stage and this view has subsequently been accepted by the Supreme Court in Mithilesh Kumari v. Prem Behari . The case of K. M. Viswanatha Pillai (supra), if pending on the date of this Act, would have been squarely hit by this Act and the ratio therein is no longer good law in view of the provisions of this Act.
9. Be it noted, however, that in the case before us, the defendant being both the owner of the vehicle and the holder of its permit and the plaintiff nowhere and at no stage having based his claim on the footing that the defendant was a benamdar, but having put forward her claim only on the footing that she, as a partner, was entitled to share profits of the business in consideration of financial contributions in accordance with the terms of partnership, the provisions of this Benami Transactions (Prohibition) Act, 1988 would not arise for consideration.
10. For the reasons stated hereinbefore, we dismiss this Second Appeal and affirm the decision of the first appellate Court, but we make no order as to costs. Let the records go down at once to the trial Court.
A.K. Nandi, J.
I agree.